Return of Rights
Q. My novel is out of print. How do I get my rights back?
A. Have you read your publishing agreement?
In a typical trade publishing agreement, the author assigns exclusive print and certain subsidiary rights (negotiable) to the publisher for the term of the agreement. The author still owns the copyright, but the author cannot exercise the assigned rights unless those rights are “reverted” to the author under the conditions set forth in the agreement’s “out of print” clause, sometimes labeled as a “reversion” clause. (Although the publisher could record its assignment of rights with the Copyright Office, this is rarely — if ever — done.)
Unfortunately, many out of print clauses are vague, providing that when a book is no longer “available,” the author may ask it be declared out of print, and the publisher must respond within a certain time frame – usually six months – by either issuing a new edition or returning the rights to the author. But although there may be no print copies available (and the book already is remaindered), if the publisher’s web site or Amazon still lists an e-book version or a print on demand, it’s technically “available.”
Some other variations of the clause may state that a book is declared “out of print” if there are fewer than a certain number of books left in circulation, or if your royalties fall below a certain amount for one or more accounting periods, or if less than a certain number of e-books or POD books are sold in a year.
In all events, you’ll need a “reversion letter” to republish your book with another publisher or to self-publish (Amazon Kindle Direct Publishing, for example will require you to certify you own the copyright). If you have an agent, reversions should be handled by her. If you don’t have an agent, you must comply with all requirements of the applicable out of print clause, using certified mail or other proof of delivery, ensuring that all time limits have expired. Wait a reasonable period of time, then begin pestering your editor or other contact person at the publisher. Keep in mind that reversions are low on the priority list of most editors, so write, call, e-mail, text, send carrier pigeons, but keep at it until you become an annoyance. If your editor doesn’t respond, go up the ladder to the editor’s boss and/or to the publisher’s executives.
If you still get no response, you may have to hire an attorney — you have the right to sue the publisher — but that is a last resort. Often just a letter from an attorney will break loose your reversion letter. But what if you can’t afford an attorney, or the publisher is out of business? Then, go to Plan B: Put the applicable page of your publishing agreement (the out of print clause or reversion clause), together with your correspondence to the publisher and proofs of receipt, into one document. Then record this document as a “transfer” with the Copyright Office – see Circular 12 for instructions. Use a cover sheet as indicated. There will be a fee of $105. This will establish your claim that the applicable rights have been reverted to you, subject to dispute from the publisher (again, unlikely in this situation). Offer a copy of this recorded document to your new publisher; it will be up to that publisher, its legal counsel, and the publisher’s tolerance for risk whether this document will be deemed sufficient.
© 2018 Daniel Steven